O.M. Abraham v. Shaji George, Leela w/o Joy, and Reliance General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939 MACA.No. 1274 of 2014 () ------------------------AGAINST THE AWARD IN OPMV 894/2010 of ADDL. MACT, ERNAKULAM DATED 31-12-2013 APPELLANT(S)/PETITIONR: ---------------------- O.M. ABRAHAM, AGED 52 YEARS S/O.MATHAI, UTHINAPARAMBIL HOUSE, KUZHIKKADU KARA, AMBALAMEDU P.O., PUTHENCRUZ VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT BY ADVS.SRI.MATHEWS K.PHILIP SMT.T.MANASY RESPONDENT(S)/RESPONDENT: ------------------------- 1. SHAJI GEORGE - S/O.ABRAHAM VARKEY, VATTAKUZHIYIL HOUSE, SOUTH OF PUTHUCHIRAKAVU, PURAPPUZHA P.O., IDUKKI DISTRICT - 685 583. 2. LEELA W/O.JOY, KATTASSERIYIL HOUSE, VADAVUCODE P.O., PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT - 682 310. 3. RELIANCE GENERAL INSURANCE COM.LTD., ELISABETH ALEXANDER MEMORIAL BUILDING, SHANMUGHAN ROAD, MARINE DRIVE, KOCHI - 682 031. ## R3 BY ADV. SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.1274 OF 2014 ==========================** Dated this the 1[st] day of August, 2017 ## **JUDGMENT** _Anil K. Narendran, J._ This appeal arises out of the award passed by the Additional Motor Accidents Claims Tribunal, Ernakulam dated 31.12.2013 in O.P.(MV).No.894 of 2010, an application filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident which occurred on 13.3.2010, while he was riding a motor cycle bearing Reg.No.KL-7/W-2499. At the place of accident, the motor cycle was hit by a mini lorry bearing Reg.No.KL-40/B-627 driven and owned by respondents 1 and 2 and insured with the third respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the mini lorry by the first respondent driver, **M.A.C.A.1274/2014** 2 claim petition was filed before the Tribunal claiming a total compensation of Rs.6,00,000/- under different heads. 2. Before the Tribunal, Exts.A1 to A14 were marked on the side of the appellant/claimant and he was examined as PW1. Respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the mini lorry by the first respondent driver. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.1,27,933/- and directed the third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of the petition, i.e., from 11.6.2010, till deposit with proportionate cost. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before **M.A.C.A.1274/2014** 3 this Court in this appeal. 5. We heard the learned counsel for the appellant/claimant and also the learned counsel for the third respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded under different heads. 7. The accident is of the year 2010 and at the time of the accident, the appellant/claimant was aged 52 years. He claimed a monthly income of Rs.30,000/-, as a light motor driver in Safer Driver LLC, a labour contract company at Dubai. In order to substantiate the said claim, he has produced Ext.A13 employment certificate issued by the aforesaid establishment and a photocopy of his driving license. However, no steps were taken to prove the said documents in accordance with law. It was in such circumstances that the Tribunal fixed the monthly income of the appellant/claimant notionally as Rs.4,000/-, for the purpose of assessing compensation under different heads. **M.A.C.A.1274/2014** 4 8. In **Valsamma v. Binu Jose [2014 (1) KLT 10]** , a Division Bench of this Court held that in the case of non-permanent employment in Gulf countries with uncertainty regarding continuance, it is not safe to rely on that income as the basis for calculating compensation payable under different heads. 9 _._ In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Apex Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 as Rs.4,500/-. Considering the fact that the accident in the instant case is of the year 2006 and at the time of the accident, the appellant/claimant was an able bodied person aged 52 years, we deem it appropriate to re-fix his monthly income notionally at Rs.7,500/- for the purpose of assessing compensation under different heads. 10. The injuries sustained by the appellant/claimant, as borne out from Ext.A3 wound certificate, read thus:- - “1. Fracture right Ulnoid styloid 2. Deg loving injury with skin loss over dorsum of left elbow extending from lower ⅓[rd] arm to upper **M.A.C.A.1274/2014** 5 ⅓[rd ] forearm venous injury. 3. Left elbow lacerated wound about 3x1cm on dorsum 4. Lacerated wound about 3x1cm on (Lt) index finger and MCP crease. 5. Lacerated wound about 2x0.5 cm on (Rt) upper eye lid 6. Contusion right upper chest 7. Abrasion all over body” Due to the injuries sustained in the accident, he had undergone inpatient treatment for a period of 22 days, as borne out from Ext.A10 discharge summary. He had also spent a sum of Rs.79,033/- towards medical expenses, which fact is evident from Ext.A11 series of medical bills. 11. The compensation awarded by the Tribunal under different heads reads thus:- |**_Head_**|**_Amount claimed_**|**_Amount_**<br>**_awarded_**| |---|---|---| |Loss of earning|60000/-|12000/-| |Transportation expenses|2000/-|1000/-| |Damage to clothing|3000/-|500/-| |Extra nourishment|5000/-|1000/-| |Medical treatment|85000/-|79033/-| |Bystanders expenses|10000/-|4400-/-| |Shock,pain and sufferings|25000/-|20000/-| **M.A.C.A.1274/2014** 6 |**_Head_**|**_Amount claimed_**|**_Amount_**<br>**_awarded_**| |---|---|---| |Loss of amenities and enjoyment<br>in life|50000/-|10000/-| |**Total**||**127933/-**| 12. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/- at the rate of Rs.4,000/-, for a period of three months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the Tribunal is justified in awarding loss of earning for the said period. Since we have re-fixed the monthly income of the appellant/claimant as Rs.7,500/-, the compensation payable under this head is re-worked as Rs.22,500/- (7,500x3). After deducting Rs.12,000/- awarded by the Tribunal, the appellant/claimant is entitled for an additional compensation of **Rs.10,500/-** under this head. 13. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2010, we deem it appropriate to re-fix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** . **M.A.C.A.1274/2014** 7 14. Towards bystander's expenses, the Tribunal awarded a sum of Rs.4,400/-, for a period of 22 days and a further sum of Rs.1,000/was awarded under the head extra nourishment. Since the accident is of the year 2010, the appellant/claimant is entitled for compensation under the head bystander's expenses at the rate of Rs.200/- per day and that under the head extra nourishment, at the rate of Rs.100/- per day. Therefore, the compensation awarded under the head bystander's expenses represents just and reasonable compensation, which warrants no interference in this appeal. However, the compensation payable under the head extra nourishment is re-worked as Rs.2,200/(100x22), resulting an additional compensation of **Rs.1,200/-** . 15. Towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. Though no disability was proved, the Tribunal awarded a sum of Rs.10,000/- under the head loss of amenities. The compensation awarded under these heads represents just and reasonable compensation, considering the nature of the injuries sustained and the disability that may arise therefrom, which warrant **M.A.C.A.1274/2014** 8 no enhancement in this appeal. 16. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation which requires no enhancement in this appeal. 17. In the result, the appellant will be entitled for an additional compensation of **Rs.12,200/-** (10,500+500+1,200) in this appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation. 18. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within one month from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1274/2014** 9 **C.T. RAVIKUMAR, J.** **M.A.C.A.1274/2014** 10 **JUDGMENT September, 2010**